The weird thing, though, is that 30 male Republicans lined up to oppose that bit of legislation. What’s the matter with those cretins? What possible reason would anyone have to defend the right of corporations to protect rapists?

Comments

Those Republicans think they have a right to a certain amount of sexual assault. And, there’s also the Republican point that women will pretend to be sexually assaulted and harassed when a Republican was just complimenting them, and perhaps blessing them with his fine male presence.

Sen. John Thune (R-S.D.) added, “I don’t know what his motivation was for taking us on, but I would hope that we won’t see a lot of Daily Kos-inspired amendments in the future coming from him. I think hopefully he’ll settle down and do kind of the serious work of legislating that’s important to Minnesota.”

This is completely incoherent. Franken’s amendment wasn’t about “taking on” Republicans; it was a response to the brutality against Jamie Leigh Jones. If this measure doesn’t constitute “serious work,” nothing does. Indeed, 10 members of the very conservative Senate Republican caucus agreed, and voted for the amendment.

Put another way, Senator Franken’s amendment isn’t thuggery, and so cannot be supported by many of the Thugs.

What possible reason would anyone have to defend the right of corporations to protect rapists?

You’re looking at it from the wrong viewpoint. The Republicans see the requirement as an unwarranted intrusion into corporate affairs.

Just like there’s a maximum limit on cockroach parts per gram of food, there’s a yet undetermined limit on number of sexual assaults per billion defense dollars. It’s the price of keeping the Taliban from invading Mobile, Alabama.

We live in a world that has walls, and those walls have to be guarded by men with guns, and these guns have to be made by somebody. Who’s gonna do it? You? These companies have a greater responsibility than we could possibly fathom. You weep for harassed women, and you curse these companies. You have that luxury. You have the luxury of not knowing what they know. That sexual harassment, while tragic, probably saved lives. And their existence, while grotesque and incomprehensible to you, saves lives. You don’t want the truth because deep down in places you don’t talk about at parties, you want such companies on that wall, you need such companies on that wall. They use terms like bottom line, quarterly profits, kickbacks. They use these terms as the backbone of a life spent defending something. You use them as a punchline. They have neither the time nor the inclination to explain themselves to men and women who rise and sleep under the blanket of the very freedom that they provide, and then question the manner in which they provide it. They would rather you just said Thank you! and went on your way, Otherwise, they suggest you open a plant, and lobby a senator. Either way, they don’t give a damn what you think you are appalled by.

“Sen. John Thune (R-S.D.) added, “I don’t know what his motivation was for taking us on, but I would hope that we won’t see a lot of Daily Kos-inspired amendments in the future coming from him. I think hopefully he’ll settle down and do kind of the serious work of legislating that’s important to Minnesota.”

Here’s the thing, it isn’t that they’re specifically opposing the amendment because of sexual battery, rape, discrimination or any of these important issues. It comes down to corporations being able to get their employees to sign away their rights. It is about the right wing’s favorite cause: the right to own other people. Those 30 senators have come down on the side of slavery. It isn’t entirely about race or gender either, it is the same class warfare they have been engaged in for 100 years. They believe the wealthy and priviledged should be above the law and should be allowed to own the poor or even the less well off.
Any time you hear one of the conservative scumbags cry “Class Warfare” what they’re really screaming is “Oh no, you’re fighting back!”

They don’t. They spend their nights at Halliburton’s rape-orgies, and then are so tired during the day that’s when they sleep. Every now and then a page wakes them and says ?vote?, so they pust a button, any button will do, and then go back to sleep.

This is how serious Senators work. Uppity goofballs like Franken have yet to figure this out, and, for example, make the unforgivable error of not rubber-stamping edicts from On-HighHalliburton.

You’re looking at it from the wrong viewpoint. The Republicans see the requirement as an unwarranted intrusion into corporate affairs.

Hmm. Just had a disturbing thought. They seem to be trying to turn corporations into religious institutions. You know, things you can’t sue, negotiate with, etc., whose opinion on their own internal affairs are always right, because the state can’t say otherwise, don’t have to pay any taxes (after all, every loophole/tax cut even introduced has, on some level, cut corporate taxes before/more than everyone else’s), and where you have no rights at all, including the right to fight for keeping your position with them.

I guess they figure televangelists got rich off those sorts of fascist ideals, so company CEOs should be given the opportunity to do the same.

Those Republicans have gotten to the point that they can’t understand why anyone would introduce legislation that actually helps citizens of this country rather than helping their political position or their monetary compensation. That explains a lot.

One of those wonderful 30 Republicans, Burr, “represents” North Carolina. After reading of his initial vote against the amendment I called his office to ask why he voted that way. First, the flunky answering the phone stated that women who were raped DID get their day in court. When I pointed out that justice sometimes included civil as well as criminal, she then piped up that Franken was being a tool of trial lawyers. After pointing out that it was RAPE that Franken’s amendment centered on (as well as including a few other related acts), she babbled a bit. I asked if Senator Burr believed in justice, and she emphatically stated YES…. but she had no answer to where the justice was for Jamie Leigh Jones…

Yes, Franken has really been a pleasant surprise, especially because I didn’t find him all that funny on Air America radio and I didn’t much enjoy his books, either. (He should have hired Michael Moore to ghostwrite.) I guess he’s finally found his calling.

Brownian, I think you have the authoritarian mindset nailed. Although in the case of these senators, I don’t think it’s fear of boogeymen so much as love of money (combined with a complete lack of human empathy). Though I suppose all 30 can’t be chiefs–I’m sure there are plenty of Indians in the mix.

Hopefully Ensign will lose his next contest? I mean, come on, having his PARENTS pay off his girlfriend’s HUSBAND ought to make those “Values Voters” less than enthusiastic about heading to the polls.

Thank goodness Rachel Maddow is out exposing those C Street boys on TV like white grubs under a rock. There’s another Air America alum–I found her voice grating. (She always sounded smug.) I guess she plays better on TV b/c she and her staff do research and she does reasonably good interviews. (Not as good as Jon Stewart, but he wasn’t always awesome either.) Nice to see her coming along too.

I’m actually a little disappointed that Kay Baily Hutchison (R-TX) voted yea on this one. She’s clearly keeping her claws in to paint a “compassionate conservative” picture of herself as she goes for the gubernatorial grab.

But remember, if you see doctored videos of ACORN employees trying to get potentially dangerous lunatics posing as pimps out of their office by pretending to help them with paperwork, you must immediately defund them.

But thing two, the GOP CongressCritters were supporting the position of the Dept of Defense, which testified in opposition to the amendment.

Question — Who is the actual head of the DOD, and why didn’t he 1) Issue an Executive Order instructing the DOD to reject bids from such companies or 2) at least instruct the DOD not to oppose Franken?

Methinks there was a lot of cynical politics on the part of the Commander in Chief, and a little naivete on the part of one liberal professor.

We live in a world that has walls, and those walls have to be guarded by men with guns, and these guns have to be made by somebody.

There’s nothing about walls or guns which require they be made or used by people who protect rapists. It is idiotic and dishonest to suggest that protecting rapists is in any helpful to national defense.

Not quite. Obama signed it into law on the 22nd (4 days ago). The vote (in the Senate) was, I believe, back in October. Regardless of when the vote was, The Thirty Thugs have been whingeing and bellyaching about people complaining about their votes ever since, which is very probably one reason it has stayed in the news ever since.

The Senators who voted nay aren’t necessarily pro-rape or even all that pro-corporate; they just want their constituencies to see them voting against the Democrats. It ultimately comes down to a difference in motivation between Democrats and Republicans. The Dems, for all their faults, by and large see politics as a means to an end. They want to get elected so that they can do stuff once they’re in office. (The way they go about getting stuff done–or not–is another matter, but anyway.) The Rethugs, meanwhile, see politics as an end unto itself. They don’t think in terms of what kind of shape the country will be in as a result of their policies; they think in terms of what will get them re-elected. They don’t even necessarily figure their constituencies are pro-rape or in favor of corporations owning the bodies and dignity of their employees; they just figure their constituencies want them to vote against whatever the Dems are doing. It doesn’t even matter whether they’re right about that, they’re just loath to be seen voting yay on some left-leaning anti-violence amendment written by some newbie Dem who made a name for himself as a comedian and managed to claw his way past Norm Coleman.

That’s when the final vote on the full bill was, but the amendment was voted on back in October. And FWIW, while the DoD did say they opposed it at first, they said the reason was that it would be hard to enforce rather than the principle, and have since said they support it. I haven’t heard any of the Senators who voted against it argue from that line or change their position.

What possible reason would anyone have to defend the right of corporations to protect rapists?

I’ve been trying to find a coherent reason why The Thirty Thugs opposed the amendment. I haven’t, albeit I also haven’t looked that hard. The two most-commonly-stated reasons seem to be that it removes the ability of corporations to require arbitration; and that it’s what trial lawyers want. The first point confuses civil and criminal law, and the second point, even if true, is not-relevant.

Supposedly, the DoD also initially opposed the amendment (I do not know if this is correct, or if it is, why).

Some of this might be more politically, rather than ideologically, motivated.

Inasmuch as the republican party is currently so bankrupt of constructive ideas, and so starkly exposed as such by the last election cycle, if they are unable to develop any policies to fill this vacuum, then their best political hope for the next election cycle is complete obstructionism, so they can run on the platform that the Democrats failed to accomplish anything (and gloss over the fact that they have no palatable, or even coherent, alternatives to propose). And although the Democrats seem perfectly capable of getting nothing done all by themselves, any further republican obstructionism only furthers the cause.

Thus, reflexively, they must oppose, anything and everything, that a democrat proposes, regardless of merit or content. They don’t even need to read to content of the measures they vote against.

Also, since Franken is one of the most liberal democrats, and given the brouhaha surrounding his election, perhaps they might see him as a vulnerable target to strike at.

The two most-commonly-stated reasons seem to be that it removes the ability of corporations to require arbitration; and that it’s what trial lawyers want. The first point confuses civil and criminal law…

Legal experts say Jones’ alleged assailants will likely never face a judge and jury, due to an enormous loophole that has effectively left contractors in Iraq beyond the reach of United States law.

Since no criminal charges have been filed, the only other option, according to Hutson, is the civil system, which is the approach that Jones is trying now. But Jones’ former employer doesn’t want this case to see the inside of a civil courtroom.
KBR has moved for Jones’ claim to be heard in private arbitration, instead of a public courtroom. It says her employment contract requires it.

This is all the amendment is actually trying to prevent. Since we can’t solve the problem of non-enforcement of criminal law (and these cases actually would traditionally have been tried in courts martial, as these would traditionally have been military jobs, but that’s another story), Franken is trying to ensure these cases have their day in civil court.

DOD is right, this will be hard to enforce. Many employment contracts have clauses that say any dispute between an employee and the employer will be settled by arbitration. The contracts between the company and the government usually doesn’t mention anything about employment contracts.

The only time it’ll come up is when an employee wants to sue the employer and the employer refuses to be sued. Then the employment contract will be looked at by the government. But what if the dispute is filed after the government contract is completed? Or what if the employee is considered company overhead (an accountant, for instance)?

I suspect it’ll take several years and a couple of trials before the rules are made uniform, probably by the courts.

Point the first: Defense Contractors are mercenaries. I refuse to glorify their work just because they’re on our side. And you know what? America could be safe without them. It has been for 200 years. But they couldn’t public support of the war in Iraq if they had to report the ACTUAL number of people lost, rather then being able to say “Only 3 soldiers died”.

Point the second: KBR is a construction company. They are in fact /not/ the defense contractors /anyway/. I’m not saying they don’t have an important job, and I’m not saying it isn’t dangerous, I’m just saying it’s not the job you think it is. Also, do you know what kickback is? It’s never a good thing.

Point the third: The (alleged) rape happened at Baghdad; Baghdad was not linked to the terrorists, so our actions there aren’t really for our own safety. Even if they were mercenaries, and even if mercenaries didn’t deserve the bad rap they get as a profession, it STILL wouldn’t be for our own safety.

Point the fourth: Putting ALL of that aside, rape is wrong. Even if the first three points stopped being true (For instance, US Army personnel in Afghanistan), those men and women don’t deserve to be in fear of people on their side. If their own side abuses them, they deserve justice.

While some of the credit for A Few Good Men can go to Cruise & Nicholson’s performances, most of it has to go to the man who wrote it – Aaron Sorkin, of The West Wing fame.

And Brownian, perhaps in the future you should put and similar paraphrases in quotes or italics – by not doing so you seem to be confusing and angering those not as well-versed in American theatre/cinema of the 1990s.

Well, goodness, we certainly wouldn’t want to have any follow-up on a news story, or possibly inform people who may have missed it the first time around. A self-absorbed little scream is so much more satisfying.

you whiffed on this one.

PZ is reporting what actually happened, while you are simply guessing at motivations. If he is the one who “whiffed”, then you are the one sitting on his couch ranting at the TV.

Rutee, Brownian was paraphrasing the dialogue from A Few Good Men where the Colonel (played by Jack Nicholson in the film version) defended workplace bullying (to the point of a marine being killed) with that argument.

It would seem that not even the near word-for-word quotation of the climactic dialogue from the pertinent movie, the repeated Tom Cruise references, multiple obliquely explanatory posts, and nay, not even the sacred shining shield of the Order of the Molly, is sufficient protection from the almighty reach of Poe’s Law.

(Or could it really be true that someone spiked Brownian’s eggnog last night?)

Rutee, comment 53 is exactly Brownian’s point. He’s doing deadpan satire in comment 6. The kind that’s not even supposed to be funny, but to point out how outrageous the situation is. He’s trying to imagine how those 30 Reptilians must think ? and how gut-wrenchingly stupid and empathy-less the way they think is.

If I, in a sudden attack of genius, had written comment 6, I’d have put all of it in Comic Sans.

Poor Brownian! It’s quite jarring to find cultural touchpoints that aren’t as common any more. Once during a lab, whilst trying futilely to lead my students to an answer, I kept saying “and then…” and “so that means…” and “and therefore…” and finally gave up and said “Which means she’s made of wood!” Not a single one of them had any idea what I was talking about. I really didn’t know how to even try to explain it.

I recognised the movie quote, and saw what Brownian was up to. (Yes, I am old.) But even so, I found it very disturbing because it is far too close to what these loathsome people really do say. Parody has been pronounced dead already; here Brownian hammers another nail in its coffin.

I remember well that during the early days of the lead-up to the Iraq War, and continuing well afterwards, this very same argument, near word-for-word paraphrases, were, in fact, used in full seriousness by the Bush brigade.

Hopefully Ensign will lose his next contest? I mean, come on, having his PARENTS pay off his girlfriend’s HUSBAND ought to make those “Values Voters” less than enthusiastic about heading to the polls.

You appear to be under the impression that the wingnuts operate based on principles, even if they’re ones you don’t share. They do not, unless the desire to destroy or enslave everyone who isn’t “them” is a “principle.” There is not a single value they claim to vote based on which they will not jettison at a moment’s notice if it aids the political or financial position of “their side.” Their entire moral code is a palimpsest, erased and re-inscribed exactly as often as is necessary.

Not to intentionally bring the wrath of everyone here down on me, but this whole discussion seems more like knee-jerk reaction than anything based on an understanding of the justice system and how this story fits into it.

First and foremost, no corporate policy of a defense contractor can have any impact on the legal prosecution of a sexual aggressor or rapist. No company could legally have an employee sign an agreement that would preclude the prosecution of a criminal, and if a company did, the agreement would be null and void as against public policy. If one person assaults or rapes another, that action is a crime and the perpetrator will be prosecuted accordingly no matter what paperwork anyone has or has not signed.

Corporate policies like the one under discussion here deal with the CIVIL side of the offense–namely what happens when the victim decides to seek money from the company because of the crime. Corporations can be held liable for the acts of their employees. This type of corporate policy says that, rather than initiating a civil lawsuit, the victim instead goes through arbitration.

As an attorney who has been involved in a lot of litigation and a lot of arbitration, I can tell you without hesitation that arbitration is much more likely to wind up with a just outcome for the victim. (Arbitration should NOT be confused with mediation, which is basically the two sides sitting down with a third party and talking things out. Mediation is pretty much useless in cases like this, where compromise is not an option.)

In arbitration, an impartial third party listens to each side’s evidence and arguments (including a dollar figure to resolve), analyzes everything, and then chooses which side should get what it asks for. The arbitrator does NOT come up with a number of her own, or decide that the victim should get nothing. She chooses between the numbers offered by both sides, based on the evidence and testimony offered by both sides. Those two numbers are her only options.

So the incentive is on the company to come up with a reasonable amount. For example, let’s say the rape victim puts her damages at $25 million and the company puts it at zero. The arbitrator chooses between those two numbers, period. If the victim can show any damages at all, the arbitrator isn’t going to go for zero. The company know this, so it is forced to put up a reasonable figure that the arbitrator can go for. Of course, this structure also influences the number that the victim puts up, but the arbitrator knows that the company has lots of money, so it can be a fairly high figure.

If, on the other hand, the victim went into litigation, she would have to get an attorney (probably on a contingency, which will cost about a third of whatever she gets, or pro bono, in which case the representation may be suspect). And, with the “proponderance of the evidence” standard in civil trials, the victim could easily wind up with NOTHING, especially given the billions the company has available to spend on good lawyering. When a company is sued by an employee, the VAST majority of the time the employee gets nothing (or maybe gets a nuisance settlement, a pittance). Employees rarely get what would actually begin to compensate for what they have suffered, or what would make the company feel the pinch and actually change its ways. That’s why when such civil judgments DO occur, they are on the front page of the paper.

In arbitration, on the other hand, the victim will almost always get a reasonable amount (given that both sides are incentivized to put forth a reasonable amount, and the arbitrator has to choose between them). As for whether a policy of arbitration “protects” rapists, I don’t see how that’s possible, given that the rapist is still going to be prosecuted criminally.

Finally, arbitration generally takes less than three days, while a civil matter may take two years or more just to get to trial.

I can say without any reservation that if I or a loved one were a victim of sexual assault at work and wanted to go after the company, arbitration would be the preferred format. It’s the quickest and most efficient method (and thus less trauma for an already-traumatized victim) and has a much better chance of a just outcome.

That said, I am not arguing for or against Senator Franken’s amendment as public policy. I think his motives are good. At the same time, the Senators who voted against the amendment may have an understanding of arbitration that makes it seem acceptable for a company, while not protecting rapists from criminal charges, to agree with its employees up front on a format for disputes that is more efficient and less costly than litigation. As an advocate for victims, I would say the company’s desire to avoid prolonged litigation happens to coincide with the victim’s desire for a prompt and just resolution. Of course the company chooses this policy for its own reasons, but that doesn’t mean it automatically goes against the interests of the employees. In this case, my experience tells me it serves the employees’ interests regardless of the company’s motivations.

As for whether a policy of arbitration “protects” rapists, I don’t see how that’s possible, given that the rapist is still going to be prosecuted criminally.

Ah, but there you’ve struck at the heart of the problem. The rapists are apparently not going to be prosecuted criminally, civilly(word?), nor in a court martial. Arbitration may get her a better dollar figure, but arbitration does not affect standing law, which I’m guessing would be her actual goal: to close the loopholes that are leaving the perpetrators outside the reach of criminal justice via the courts.

I can say without any reservation that if I or a loved one were a victim of sexual assault at work and wanted to go after the company, arbitration would be the preferred format.

And you could choose it if you had that choice. These people don’t, you paternalistic asshole.

At the same time, the Senators who voted against the amendment may have an understanding of arbitration that makes it seem acceptable for a company, while not protecting rapists from criminal charges, to agree with its employees up front on a format for disputes that is more efficient and less costly than litigation.

If you really think anyone here is going to buy this “agree with its employees up front” on a format in everyone’s best interests bullshit in this context, you have a fucking screw loose.

Oops, I missed that part. Yeah, that’s a FAIL. The whole problem is that these companies and their employees act with impunity on the government’s dime. When the actions are criminal, they can’t be prosecuted under US law, Iraqui/Afghan law, nor international law (such as it is). Pushing people into arbitration protects that status, instead of letting injustice be addressed in open court.

Despite the fact that the film version of A Few Good Men was quite a while back, it was a stage play first and it continues to be produced all over the world.

In an intimate theatre with good actors playing the roles (particularly Col. Jessup) it’s likely to be better than the film version because of the power of live performance. I’m always hoping someone will put on another production of it here in Adelaide; if I have to I’ll produce the bloody thing myself.

Once during a lab, whilst trying futilely to lead my students to an answer, I kept saying “and then…” and “so that means…” and “and therefore…” and finally gave up and said “Which means she’s made of wood!” Not a single one of them had any idea what I was talking about. I really didn’t know how to even try to explain it.

Ha. I know the feeling. A while back, when asking a colleague a favor, I said “…and so I would like you to do X” to which he playfully responded “well, what if I don’t?” and I said, expecting him to get the reference, “If you don’t I’ll… I shall say Ni!“.

It shouldn’t be a surprise that corporations will take any advantage they can get away with. This excellent book explains why corporations are intrinsically antisocial:

“corporations are designed to externalize their costs.” The corporation is “deliberately programmed, indeed legally compelled, to externalize costs without regard for the harm it may cause to people, communities, and the natural environment. Every cost it can unload onto someone else is a benefit to itself, a direct route to profit.” (pp. 72-73)

?What possible reason would anyone have to defend the right of corporations to protect rapists??

The same reason why someone might oppose laws demanding that the government only buy from companies that encourage patriotic activities on the part of their employees. Sounds good in theory, but one suspects that this might turn into something we would not want in practice.

I do not support or oppose the bill. I would want to take a closer look at the actual text of the bill before I made up my mind. I am naturally suspicious of any bill defended in Manichean terms by its proponents.

attorney, the problem with attrition is that it’s often done behind closed doors and some states like CA put a heavy burden on the party that refuses to what the 3rd party thinks is a “reasonable compromise”.

Let me put it another way. If a co-worker raped you and the company you both work for refused any kind of responsibility for its employees (like a psych test, ignored warning signs, etc), how much money do you think it would take to force them to realize that what they did and did not do was wrong? Now what happened if a “neutral” third party reduced that amount by a factor of 1000 or more. Would that be justice?

The only real way to punish companies is to fine them and put them on public display and attrition does not do that well enough. To them attrition means “avoiding a costly legal battle” and “nuisance lawsuit”. Think about it, whenever a company settles out of court, they don’t admit wrong doing and they use those phrases I just mentioned. Worse is that the right wingers actually believe that, that every lawsuit against a corporation is just a gold-digger who refuses to accept responsibility for their own actions. That has to change.

But even so, I found it very disturbing because it is far too close to what these loathsome people really do say

That was the point indeed, Cath. The play was first performed in 1989 and the film in 1989. At that time, the ubiquitous enemy from whom protection meant suppression of freedom were the communists. It’s unfortunate that so little has changed (though should be clear I’m not actually claiming this is the argument the nay-saying Repubs are actually making in defense.)

While it’s too bad many didn’t recognise the parody, it’s good that they were willing to call me out on the comment, Molly or no Molly, no?

For those who haven’t seen the movie, here’s a link to the speech. The parodied dialog begins at 1:40, right after the famous line, “You can’t handle the truth!”

Ugh, Brownian, that’s disgusting. I bet you thought it was an example of your shining wit, but if that’s as good as it gets, you need help. Maybe anger management, or just a pledge not to be a jerk. Some joker you are. Or how about you try this (trying to keep this broadcast news friendly): Go carnal knowledge yourself. That’s five easy pieces right there, but I can make a whole bucket list of things for you. Get my drift? You say crap like that, and something’s gotta give.

As an attorney who has been involved in a lot of litigation and a lot of arbitration, I can tell you without hesitation that arbitration is much more likely to wind up with a just outcome for the victim.

I’m rather appalled that putting such (unlawful) rules into some agreement, does not make the entire agreement unenforceable in a court of law. This is what would happen in Germany. Some common sense is missing in the US rules of law.

As an attorney who has been involved in a lot of litigation and a lot of arbitration, I can tell you without hesitation that arbitration is much more likely to wind up with a just outcome for the victim.

If that’s the case, why do corporations force it?

To shut people up. It’s how you suppress whistleblowers: talk to them in private hearings, make them an offer they can’t refuse, seal the record, and require they never talk about it again. It’s especially useful when exploiting legal grey areas is your modus operandi. The victims do usually end up with more money, but it’s more of a payoff than justice served.

LOL I should have put 2+2 together – I got maybe 20% of the references, I just thought the rest of it was a quote from somewhere being bent out of shape to reference JN movies.

Hah, I was worried it’d be too obvious, but it’s far and way my best comment. So far you’re the only collateral damage. I’d already had a cocktail, was losin’ it, so making a joke like that was risky business. But I had a firm idea of where I wanted to go, if I made all the right moves, I could be a legend. I could be at the top, gunning for those OMs.

I know, John Marley, I’m as shocked as you are. The financial evidence collected by Hollywood and the movie industry seems to have been upturned by a few quick-tempered comments on this blog. Clearly the success of A Few Good Men is a hoax! Someone alert the media! I’m beginning to be suspicious of all businesspeople.

Well, I’m glad I’m not the only one who missed Brownian’s reference to “A Few Good Men” – but since when has that movie been considered a point of cultural reference, anyway? The only line I remember is “You can’t handle the truth,” and that’s from the previews.

It was obvious to me Brownian’s comment was irony, albeit I’ve never seen the movie or play it was parodying. As for someone not getting a Monty Python reference, even my French colleagues will quote bits of The Search for the Holy Grail… in English.

My [nonexistent] God! I can see a contract like that coming to me. It will be just like the “no means yes” legal defences again. “So, he can rape me if he says he thought I didn’t mean it when I said no? Well, then, you won’t mind if I break an arm to make my point or perhaps kill him.” Just sign here while I put in this amendment: “corp won’t complain if contractor kills someone who appears to be attempting rape.” Initial here, please.

This movie? Seen by “apparently few people”? Few people under the age of 16, maybe.

Not seen it. Sorry, but there are 60 years of cinema to get through from multiple countries. Some fell through the gaps.
I doubt Brownian would have got an OM if they actually HAD that attitude though.

I don’t believe for a second that the DOD’s objections to the amendment had anything to do with the opposition of these senators. However, those objections were quite valid. The law is extremely narrow in scope. Jamie Leigh Jones’ case was just one example of a larger problem. It should have been addressed in a labour bill setting out the kinds of disputes that can and cannot be dealt with using binding arbitration. While the Franken amendment was a positive change, it was a PR move by Franken far more than it was a principled stand.

However, those objections were quite valid. The law is extremely narrow in scope.

That wasn’t the objection. Indeed, the objection was that even this narrow amendment specifying no war contracts with companies that require such clauses for egregious acts was an undue intrusion on ‘private’ contracts.

It should have been addressed in a labour bill setting out the kinds of disputes that can and cannot be dealt with using binding arbitration.

This is about people being compelled to sign away their right to bring their cases to court, and about how such “agreements” are being used to block criminal prosecutions and public knowledge, not about “what can and cannot be dealt with using binding arbitration.”

In addition to addressing this specific problem, there is no way in which this amendment does anything but contribute in some small way to labor rights. But nice try with the “what’s-needed-is-really-a-complete-overhaul-so-this-is-useless-or-counterproductive” gambit.

While the Franken amendment was a positive change, it was a PR move by Franken far more than it was a principled stand.

It passed a few days ago, so I’m not sure why you’re referring to it in the past tense. And even if that were true it would be irrelevant to the amendment’s value or effectiveness. And bullshit.

Obama got 69 million popular votes and McCain got just under 60 million. Who came in third? Ralph Nader managed to scrape up 738,475 votes. In fact if all the third party votes had gone for McCain then Obama would still have won.

The way the electoral system is set up in the US, one of the two major parties has got to implode before a third party candidate has got any chance for election. The last time that happened was in the 1850s when the Whig party disintegrated over the issue of slavery, allowing the Republicans to become a major party.

Earlier this year, at a vets’ speakout on the various US wars, I heard a man do an utterly sincere version of the AFGM speech (yes, he seemed much too young to have seen the movie, though who knows?).

It was all about how the rest of us should be grateful to those who are willing to do the unspeakable, shouted out with much adrenalin.

Unfortunately for the verisimilitude of Mr. Nicholson’s histrionics, this guy was a real live Iraq war survivor, complete with extreme PTSD. He couldn’t even sit in a chair without shaking, and repeated involuntary head jerks. I can only hope that the potential enlistees who heard and saw him drew the logical conclusions.

There was a lot of discussion about the situation of US women in our war zones as well. I can’t recall the statistic of how many female troops report sexual harassment &/or assault, but the unanimous consensus among the current generation of women vets present was that those not included in that percentage = the number who won’t report anything.

While it’s too bad many didn’t recognise the parody, it’s good that they were willing to call me out on the comment, Molly or no Molly, no?

I’ve come to look forward to your well-reasoned opinions, but I could feel my eyebrows disappearing into my hairline with the first two sentences(quite a feat, considering the recent retreat of my traitorous hairline).It wasn’t until the “people manning the walls with guns” that I realized I’d heard this speech before…

From RickR’s link (#12)it appears that John “the fundamentals of the economy are strong” McCain is pro-rape. –whistlepete #28

The day during the election season that John McCain offered up Cindy McCain as “Miss Buffalo Chip” without consulting her about it, I considered him to be pro-rape. Plus he advocates DADT, which is pro-rape for both males and females. Not wanting rape victims to get a day in court is code for knowing that rape happens all the time and that a change making it possible to prosecute rapists will be costly (within the military itself, it is still next to impossible to prosecute for rape in cases that come under DADT).

Not wanting rape victims to get a day in court is code for knowing that rape happens all the time and that a change making it possible to prosecute rapists will be costly (within the military itself, it is still next to impossible to prosecute for rape in cases that come under DADT).

Plus, a female soldier who gets raped and becomes pregnant can get court martialed for it.

I was making a basic point about civil liberties. As recent history has shown us, it is very easy, even for otherwise intelligent people, to get tunnel vision when they see something they value dangling in front of their eyes to such an extent that they lose the larger picture. I brought up the example of patriotism. I consider myself a deeply patriotic American, someone in love with the work of the founding fathers and whose heart flutters at the sight of an American flag. I assume many people on this forum are like this to either in regards to the United States or to their native countries. How is it possible that I can resist every patriotic sounding bill? It is because part of my training as a patriot is to be skeptical precisely of those who make that extra show of trying to sound patriotic, to be on the lookout for the man behind the curtain who is trying to play me. I am glad that you both so comprehend the dangers of patriotism as to scoff at the issue. I believe, though, that if we are to win out against the far right we are going to have to take this appeal seriously. I also believe that you may benefit from considering whether there are traps in your own thought, things, such as protecting women from rape, that you value so dearly that you may fail to consider a larger picture. Ask yourself if companies should form Inquisition squads and put rape suspects on the rake and if you say no explain why this is not a failure on your part to protect women from rape.

SC, I’m not sure you understood my tone. I worried the first two sentence might be a little confusing when I wrote them, so let me clear things up a little.

The senators did oppose the bill for the reasons you stated. The DoD’s resistance was completely different.

From a DoD memo opposing the amendment: “It may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse.”

I agree with that statement. The memo goes on to say why the Franken Amendment will be difficult to enforce and will likely fail at its objective.

I also never said a thing about any legislative overhaul. We’re talking about creating a simple rule governing employment contracts. The right way to do this wouldn’t have been much harder.

What I am saying is that this isn’t nearly as big a win as people are making it out to be. All Franken really achieved here is making some Republicans look bad, and they’ve got that pretty well covered on their own.

Sorry if I’m bursting your bubble. I’m an atheist and a skeptic; bursting bubbles is just in my nature.

Oh look, it’s libertarian idiocy. Again.
Do you also agree that corporations have the right to control whatever their workers do, including forcing them not to report crimes? Because that’s what Halliburton’s doing.

From a DoD memo opposing the amendment: “It may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse.”

I agree with that statement.

Then you’re not too bright. A not-insignificant number of Senators opposed this extremely narrow amendment on the grounds I stated. The chances of such a prohibition being enacted in anything approaching the short term are slim to none. If it were, yes, it might be expected to be more effective, but seeking it would clearly not have been more effective than seeking this limited amendment, or have helped these people in the here and now.

The memo goes on to say why the Franken Amendment will be difficult to enforce and will likely fail at its objective.

We’re talking about corporations operating in a dubious legal context. Anything is difficult to enforce. (I’m an anarchist and don’t see any such reforms as genuinely effective or sustainable, though I do think they have value in many ways, even the small ones.) But I’m not convinced. I don’t see why this particular amendment would be particularly difficult to enforce. Make companies being granted contracts (anywhere along the subcontracting chain) sign something saying they do/will not pressure or require workers to sign these clauses, make violating this subject to penalties, and require the DoD to treat any such clauses as null and void (no, based on their past behavior in this context, I don’t trust them here in any way).

I also never said a thing about any legislative overhaul. We’re talking about creating a simple rule governing employment contracts. The right way to do this wouldn’t have been much harder.

Bullshit. And there is no reason that can’t be a next step, building on this. Again, look at the opposition to this narrow amendment. And there are so many contradictions here: It’s allegedly difficult to enforce this narrow rule, but a more sweeping rule would somehow become magically easier to enforce? Give me a break.

What I am saying is that this isn’t nearly as big a win as people are making it out to be.

No one’s making it out to be any huge win – just a good and needed amendment. The focus is on the scumbags in the Senate who opposed it, since the fact that it has to be a “win” at all is what’s so appalling. It’s disgusting that such a situation could exist and that some people would want to see it continue.

All Franken really achieved here is making some Republicans look bad, and they’ve got that pretty well covered on their own.

Wrong. It will likely have real effects, in addition to symbolic effects that can form the basis for a larger push for workers’ rights. But I suspect Franken, like others, was somewhat surprised at the opposition to this.

Sorry if I’m bursting your bubble. I’m an atheist and a skeptic; bursting bubbles is just in my nature.

I also never said a thing about any legislative overhaul. We’re talking about creating a simple rule governing employment contracts. The right way to do this wouldn’t have been much harder.

Do you know what “a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse” means?

Look, I’m sorry, but I just don’t see how we can be arguing this. Women have a right to be free from fear of sexual assault in the workplace. In the absence of any other protection, litigation is their last resort. Yes, it should scare corporations. It should scare them so much that they put sufficient fear of god/dog into their employees that none of their females will ever have to deal with sexual harassmentment or assault.
Don’t like litigation? Fine. Propose a counter-amendment that accomplishes the same thing. Boiling rapists slowly in oil might not be a bad start.

This is about people being compelled to sign away their right to bring their cases to court, and about how such “agreements” are being used to block criminal prosecutions and public knowledge, not about “what can and cannot be dealt with using binding arbitration.”

Let’s just make this clear. The Halliburton/KBR employment contract in the Jamie Leigh Jones case did not purport to, and could not, “block criminal prosecutions”. Instead, it purported to block her from bringing a civil action in open court. There is an important difference.

The same unlawful act – in this case, rape and battery – can be both a criminal offence and a civil wrong. The prosecuting authorities, not the victim, decide whether or not to file criminal charges; the victim’s employment contract has nothing to do with it. In the Jamie Leigh Jones case, the US Department of Justice decided, for reasons of its own, not to prosecute; but Ms Jones’ employment contract could not have prevented the DoJ from prosecuting if it had chosen to do so. It is not possible to “contract out” of the criminal justice system.

What Ms Jones’ employment contract did purport to do, however, was prevent her from bringing a civil action in open court in respect of personal injuries in the workplace. Instead, it provided that personal injury cases However, she brought a civil action anyway, arguing that the rape was not a “personal injury arising in the workplace” for purposes of the contract. In September 2009, the 5th Circuit Court of Appeals ruled that the rape was not covered by the provision in her employment contract, and therefore that she could proceed with a civil action in open court.

It’s important to make this distinction. It is not possible for a company to contractually exclude the jurisdiction of the criminal law over its employees; it can’t “protect rapists from prosecution”. Rather, Ms Jones’ employment contract prevented her from bringing a civil lawsuit in respect of work-related injuries, except by third-party arbitration.

I’m not defending Halliburton/KBR in any way; it was a simple, cynical attempt on their part to save money (since, if Ms Jones’ allegations are proved, they will be vicariously liable for the rapists’ actions and will have to pay her compensation). But I think it’s important to understand what this controversy is actually about, from a legal perspective. Too many people ignore or misunderstand the distinction between criminal and civil law.

Let’s just make this clear. The Halliburton/KBR employment contract in the Jamie Leigh Jones case did not purport to, and could not, “block criminal prosecutions”. Instead, it purported to block her from bringing a civil action in open court. There is an important difference… The prosecuting authorities, not the victim, decide whether or not to file criminal charges; the victim’s employment contract has nothing to do with it. In the Jamie Leigh Jones case, the US Department of Justice decided, for reasons of its own, not to prosecute; but Ms Jones’ employment contract could not have prevented the DoJ from prosecuting if it had chosen to do so. It is not possible to “contract out” of the criminal justice system…

Walton, before you attempt to lecture me and everyone else on the law, try to understand the point that was being made. We’re well of what the contract clauses said, and several of us (including myself @ #77) have mentioned it or linked to articles discussing it. What I said was that it is being used to block criminal prosecutions.

From my link @ #77:

When it turned out that defense contractors often required employees, as a condition of employment, to submit to binding private arbitration in disputes with the contractors (including allegations of sexual assault), instead of bringing complaints to public courts, and that the Department of Defense claimed they couldn’t prosecute for this very reason (even though these clauses only prevented civil suits), [no citation for this] Senator Ben Nelson, who called the hearing, offered a simple solution: “This might be something you want to require and include in your contracts–before you award them,” Karen Houppert reported in The Nation.

After another KBR employee, Jamie Leigh Jones, began speaking out about her own gang rape in December 2005, she met other women with similar stories, and in response formed a non-profit to support women who experienced sexual assault at the hands of co-workers while employed by a defense contractor. When Houppert reported on Jones’s organization in The Nation, by then supporting forty women, Houppert observed, “Most of these complaints will never see the light of day.”

Adding insult to injury, the Department of Defense could prosecute these crimes under the Military Extraterritorial Jurisdiction Act and the Patriot Act’s special maritime and territorial jurisdiction provisions, but has opted not to. In the face of DoD inaction, survivors, meanwhile, had signed away their right to sue civilly and were left only with arbitration.

These “agreements” make it all the more possible for companies to intimidate workers who have been attacked from reporting it, the DoJ and DoD are clearly not to be trusted to enforce the criminal law in these cases, and whether they even can is unclear in situations in which people and organizations are effectively outside the law.

It has in effect become possible to “contract out” of the criminal justice system. Further, blocking people from going forward with a civil case removes pressure on these bodies for criminal prosecutions. This is what I meant by its being used in this way. That the clauses are technically about civil cases doesn’t matter – in practice, they contribute to the problem of prosecutorial inaction in criminal cases. They are merely part of the mix, but they add to it. They – in “merely” civil terms and in terms of the role they play in criminal cases – contribute to rendering people (and governments) more powerless in the face of corporations, and allowing those to act with impunity.

Too many people ignore or misunderstand the distinction between criminal and civil law.

Fuck you.

This is a very emotional issue to which there have been a lot of knee-jerk reactions.

This has nothing to do with the length of the bill. If passing that is Senate busy work, then this amendment, being far narrower (only dealing with DoD contracts), shouldn’t have faced any opposition at all. You’ve offered nothing to suggest that it would be easy to get through, especially prior to the passage of this one. And I reiterate: If the DoD objection was the alleged difficulty of enforcement of this, why would you expect “a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States” to be more enforceable and therefore effective?

And if you did read my post, then why did you insult me for agreeing with you on a point of established fact.

I suggested that you were stupid if you a) believed that the DoD is being forthright here and b) politically naive if you think seeking something far more comprehensive in that moment was a better – more effective – strategy for change.

I suggested that you were a) stupid if you believed that the DoD is being forthright here and b) politically naive if you think seeking something far more comprehensive in that moment was a better – more effective – strategy for change.

Walton: As part of your law (pre-law? not sure how it works over there) training, have you had to take a course in the sociology of law?

SC, you seem to be conflating my comments with those of richardrob.pip.verisignlabs.com. I have not said anything either way about my view on this amendment. For the record, I support the amendment, and I don’t agree with those on this thread who have been criticising it.

Rather, I was simply trying to clarify a distinction. I apologise for misinterpreting your comment, and I wasn’t in any way trying to impugn your knowledge of the law. But your comment about “blocking prosecutions” was ambiguous, and therefore liable to confuse other readers, thereby spreading misconceptions about the law.

These “agreements” make it all the more possible for companies to intimidate workers who have been attacked from reporting it, the DoJ and DoD are clearly not to be trusted to enforce the criminal law in these cases, and whether they even can is unclear in situations in which people and organizations are effectively outside the law.

True. But I was seeking to clarify the formal legal position; namely, that the employment agreement was not a legal impediment to prosecution. The DoJ, therefore, cannot rely on the agreement as an excuse not to prosecute.

As I said, I support the amendment, and I don’t particularly disagree with your analysis. I’m not trying to make a political point here.

SC, you seem to be conflating my comments with those of richardrob.pip.verisignlabs.com.

No.

I have not said anything either way about my view on this amendment. For the record, I support the amendment, and I don’t agree with those on this thread who have been criticising it.

I’m happy to hear it.

Rather, I was simply trying to clarify a distinction. I apologise for misinterpreting your comment, and I wasn’t in any way trying to impugn your knowledge of the law. But your comment about “blocking prosecutions”* was ambiguous, and therefore liable to confuse other readers, thereby spreading misconceptions about the law.

Not really, because the distinction had I believe already been discussed previously on the thread and was made in a link I myself had given. If that remark was ambiguous to you, you could have asked. :/

Apology accepted, in any case, and sorry if I was a bit harsh in my response.

Given that a change to labour standards would immediately obviate Haliburton’s defense in this case, I’d say it’s far easier to implement than forcing the DoD to re-evaluate all of its 1000+ (?) contractors.

And you’re right. It would be harder to pass this sort of thing, since it wouldn’t appeal as much to the democrats who were pissed off over ACORN’s defunding and wanted to strike back in kind. But not much harder.

It’s clear from rereading #151 that I had you pegged at #154. #159 is revisionist bullshit and you know it. But thanks for taking the time to get the parallel forms right. I do so hate poor grammar when being insulted. You arrogant shit.

Given that a change to labour standards would immediately obviate Haliburton’s defense in this case, I’d say it’s far easier to implement than forcing the DoD to re-evaluate all of its 1000+ (?) contractors.

First, the second phrase follows in no way from the first, you idiot. The issue was how difficult “a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse” would be to implement in comparison. Second, the DoD’s “evaluating” these contractors wouldn’t be particularly difficult or even necessary. Require them to submit in writing that they aren’t doing it, as I suggested. The evidence suggests that they’re not being forthright here.

And you’re right. It would be harder to pass this sort of thing, since it wouldn’t appeal as much to the democrats who were pissed off over ACORN’s defunding and wanted to strike back in kind. But not much harder.

Oh, sure, that’s what this was about. I’m continually amazed that people who say things like this expect the intelligent readers here to buy them. And of course the issue isn’t support from the Democrats but opposition from the Republicans. Glad you’ve shown your true colors, though. And that you’ve acknowledged that this would indeed be more difficult (though not how difficult – doesn’t matter, since reasonable people recognize it) to pass. You can go now.

It’s clear from rereading #151 that I had you pegged at #154. #159 is revisionist bullshit and you know it. But thanks for taking the time to get the parallel forms right. I do so hate poor grammar when being insulted. You arrogant shit.

Was there a substantive argument there anywhere? If so, I missed it. Run along, babbling ideologue.

…since the blog software fucks up the “Google ID” thing too I need to remember to sign my posts as Azkyroth.

PZ, I don’t know what your contractual terms and personal thresholds are, but if it were me, I’d be seriously investigating alternative hosting arrangements after putting up with this shit for this long.

SC, I think you’re missing the point. Our society currently responds to rape, and other forms of illegitimate violence and abuse, by imposing state punishment through the criminal justice system. Presumably, a society governed on anarchist principles would not have a criminal justice system, prisons, or other institutions of systematic public coercion. I therefore find it hard to see how an anarchist society could protect vulnerable individuals from violence, rape and abuse. While existing criminal justice systems leave much to be desired – and I’m very much opposed to the massive over-use of imprisonment in the UK and US, as well as to the pointless criminalisation of personal lifestyle choices such as the use of recreational drugs – the fact remains that humanity has not yet found a way to deal with rape, murder, and the like other than by inflicting some kind of state sanction on the offender.

I’m curious as to how you think peace and order could be achieved without some form of coercive law-enforcement and judicial infrastructure (if, indeed, this is the end that you desire). I fear you’re going to accuse me of attacking a caricature or straw-man version of anarchism. But since you generally refuse to be drawn on exactly what your desired anarchist society would look like, I don’t think I can be blamed for misunderstanding it.

(Apologies; I know this wasn’t addressed to me. But I share Azkyroth’s curiosity about how an anarchist society would handle interpersonal violence and conflict.)

WTF? I was asked a question. I asked a question in return, primarily to get a better sense of the sort of response Azkyroth was looking for (and for other reasons as well, which we may get to eventually).

the fact remains that humanity has not yet found a way to deal with rape, murder, and the like other than by inflicting some kind of state sanction on the offender.

Now, how could this be a fact? Have states always and everywhere existed? Think about it.

I fear you’re going to accuse me of attacking a caricature or straw-man version of anarchism.

I would only accuse you of that if you had actually done it, which you haven’t. There’s nothing wrong with being curious or skeptical and asking questions.

But since you generally refuse to be drawn on exactly what your desired anarchist society would look like,

It’s true that I’m reluctant to involve myself in abstract discussions in which I’m expected to speak for other anarchists and develop a detailed vision of some future “society.” First, because it’s something of a trap: as soon as an anarchist talks about how things could be done differently, we’re almost invariably accused of being utopian dreamers*. I would rather talk about and evaluate concrete policies and projects with people who also have ideas and solutions in mind and are legitimately concerned about the problem and not simply with debating abstract political theory. Second, because anarchism is more about a set of principles for which any number of political projects, developed in different times and places, may be more or less in keeping than about a preformed vision. Third, because that’s the way I am: I look at what’s been done and what’s being done concretely and the results, effects, problems, and possibilities, and try to synthesize and build on those ideas. It’s not that I’m not an abstract thinker; I just like to keep things grounded.

That said, your concerns about anarchism in relation to crime and justice are totally valid. It is one of the more difficult issues for anarchists to deal with.

You know who had some interesting things to say about crime and prisons?

I don’t think he dealt with the questions perfectly, even for the time, but I’d say it’s the classic anarchist statement on the matter. In any case, I would be happy (later, after errands and visiting) to summarize and critically discuss historical anarchist thinking and action in this general area (including Kropotkin’s), talk about some of the things anarchists are doing specifically in the area of sexual violence and some of the problems they’re facing, discuss some general causes of sexual violence and approaches that I see as in keeping with anarchist principles, etc.

*(this would be especially odd on a thread in which I’m criticizing someone for the (disingenuous use of, to be sure) use of the Perfectionist Fallacy in relation to the US government, but I suspect it would happen anyway)

Well done SC, OM @163 for not falling into richardrob’s trap(?). Of course Franken’s amendment is a better step than any large change in labour standards. The amendment is specifically about government restricting what government can do while the other looks to me to be unconstitutional time wasting.
/patronising

Fine, let me rephrase: how, other than government action (a necessary result of the absence of a government, which I understand anarchism to advocate, would you suggest rape be addressed at the societal level?

First of all, I do think the criminal justice system in the UK and US is broken. In particular, the prison population is far too large. The policy of imprisoning petty criminals and drug users has been shown to increase, not reduce, rates of re-offending; it’s also brutal, expensive, and ruins many people’s lives. The only part of the population which really benefits is the (rapidly growing) private correctional industry, which is raking in vast sums of taxpayers’ money. In my view, no one should be imprisoned for any non-violent offence. In particular, recreational drug use should be decriminalised; drug addiction should be seen as a public health issue, not a criminal issue. Unfortunately, it seems to me that criminal justice policy has been largely driven by populism, motivated by an irrational public desire for vengeance rather than by any rational social objective.

And I agree with some parts of the article to which you linked. In particular, I think there?s a lot of truth in this:

Mr. Maudsley’s researches into insanity with relation to crime are well known in this country. But none of those who have seriously read his works can leave them without being struck by the circumstance that most of those inmates of our jails who have been imprisoned for attempts against persons are people affected with some disease of the mind; that the “ideal madman whom the law creates,” and the only one whom the law is ready to recognize as irresponsible for his acts, is as rare as the ideal “criminal” whom the law insists upon punishing. Surely there is, as Mr. Maudsley says, a wide “borderland between crime and insanity, near one boundary of which we meet with something of madness but more of sin (of conscious desire of doing some harm, we prefer to say), and near the other boundary of which something of sin but more of madness.”

I have always argued that the criminal law?s notions of ?insanity? and ?incapacity? are entirely artificial, because they create a sharp dichotomy in law where none exists in nature. In reality, capacity and responsibility for one?s actions is a sliding scale, not a binary state. A substantial proportion of serious criminal offenders suffer from some kind of mental illness; many were abused or traumatised as children; and a disproportionate percentage come from broken families and unusually deprived backgrounds. Ultimately, individuals? psychological states are complex, and it?s absurd to argue that everyone who doesn?t meet the narrow legal definition of ?insane? is automatically fully morally responsible for his or her actions. So I agree that a large proportion of those people who we currently label as ?criminals? need treatment, not punishment.

Nonetheless, I have to disagree with Kropotkin on a number of points. In particular, he says this:

Two-third of all breaches of law being so-called “crimes against property,” these cases will disappear, or be limited to a quite trifling amount, when property, which is now the privilege of the few, shall return to its real source ? the community. As to “crimes against persons,” already their numbers are rapidly decreasing, owing to the growth of moral and social habits which necessarily develop in each society and can only grow when common interests contribute more and more to tighten the bonds which induce men to live a common life.

Obviously I disagree with the first sentence, because ? as you know ? I believe, unlike Kropotkin, that the notion of private property is a useful and desirable social construct, and that the law is right to protect property as well as persons from interference. I also think the second sentence reveals an undue optimism; violence and aggression are always with us, being a part of human nature, and will not completely disappear even in the most prosperous and peaceful society.

I?m also sceptical of Kropotkin?s optimism here:

And yet, notwithstanding all this, there surely will remain a limited number of persons whose anti-social passions ? the result of bodily diseases ? may still be a danger for the community. Shall humanity send these to the gallows, or lock them up in prisons? Surely it will not resort to this wicked solution of the difficulty? There was a time when lunatics, considered as possessed by the devil, were treated in the most abominable manner. Chained in stalls like animals, they were dreaded even by their keepers. To break their chains, to set them free, would have been considered then as a folly?The chains disappeared, but asylums ? another name for prisons ? remained, and within their walls a system as bad as that of the chains grew up by-and-by? Liberty and fraternal care have proved the best cure on our side of the above-mentioned wide borderland “between insanity and crime.” They will prove also the best cure on the other boundary of the same borderland.

I am sceptical of the suggestion that all mentally ill people, even those who have committed serious crimes of violence, can be adequately treated with ?liberty and fraternal care? and should be released into the community. There are a few individuals who demonstrably pose a continuing danger to the public, and, as I see it, there is therefore an irreducible need for some kind of secure facility to hold them. As I?ve said, I?m strongly opposed to criminal justice systems as they currently exist; but I seriously doubt that, even in a more enlightened society, the need for coercion and detention can ever be eliminated entirely.

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